Himachal Pradesh High Court
Ashwani Kumar vs State Of H.P on 17 November, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 116 of 2018
.
Reserved on: 6.11.2023
Date of decision: 17.11.2023.
Ashwani Kumar ...Appellant.
Versus
State of H.P. ...Respondent.
Coram:
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
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Whether approved for reporting?1 No
For the appellant : Mr. N.S. Chandel, Sr. Advocate
with Mr. Vinod Kumar Gupta,
Advocate.
For the respondents : Mr. I. N. Mehta, Senior Additional
Advocate General with Mr. Navlesh
Verma and Ms. Sharmila Patial,
Additional Advocate Generals.
Satyen Vaidya, Judge:
The appellant has been convicted for offences under Sections 498A, 302 and 201 of the IPC in Sessions Trial No.08-P/VII/2015 by the learned Additional Sessions Judge (III), Kangra at Dharmshala, District Kangra, H.P. vide judgment dated 16.1.2018 and has been sentenced as under:-
1Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 17/11/2023 20:32:08 :::CIS -2-
Sr. No. Section Sentence
1. 498A of IPC Rigorous imprisonment for three years and a
fine of Rs. 5000/- and in default of payment of fine, simple imprisonment for one month.
.
2. 201 of IPC Rigorous imprisonment for three years and a fine of Rs. 5000/- and in default of payment of fine, simple imprisonment for one month.
3. 302 IPC Life imprisonment and a fine of Rs. 10,000/-
and in default of payment of fine, simple imprisonment for one month.
2. It was alleged that at about 3.05 PM on of 14.4.2015 Anil Kumar (PW-5)telephonically informed Police Station, Palampur that Smt. Sunita Devi wife of Ashwani rt Kumar (appellant) had hanged herself in the house of her father. On such information DDR Ext. PW-10/A was recorded by the police and police reached on the spot to verify the information.
3. PW-1 Kumar Tamang (father of deceased) got recorded his statement Ext. PW-1/A under Section 154 Cr.P.C. alleging inter-alia that the appellant had been harassing the deceased, which had led her to take a drastic step to end her life. On the basis of the statement of PW-1, FIR Ext. PW-13/A was registered and investigation was commenced.
4. On completion of investigation, investigating agency filed report under Section 173 Cr.P.C. alleging therein that the appellant had been harassing his wife and ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -3- in the past also compromises had been affected inter-se the parties. The deceased and appellant had a son aged about .
three years. The deceased had come to the house of her father about fifteen days before the date of incident. On the night of 13.4.2015, the appellant had also visited the house of PW-1 and had stayed there. In the morning PW-1 of and the appellant left for their respective jobs. The mother of deceased also left home to fetch her medicines at about rt 11.00 AM. After some time, she received telephonic information from the appellant that the deceased had hanged herself. The mother of deceased PW-2 reached home and found that the body of deceased was lying in sitting posture against corner of the room with a piece of cloth "Chuni" tied around her neck. PW-2 immediately took the deceased in her lap. In the meanwhile, appellant had also called PW-1. President of Gram Panchayat Gopalpur (PW-5) also arrived on the spot and informed the police.
5. The Autopsy Surgeon had found the evidence that it was a case of homicide. PW-3, who was resident of a nearby house, had disclosed to the police that on ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -4- 14.4.2015, she had visited the house of PW-1 at about noon. The door of the room was shut, whereas the door of .
kitchen was open. She came back to her house and noticed therefrom that the appellant had tried to conceal himself by jumping into a field from the verandah of house of PW-1. She had called the appellant and told him that of she had noticed his conduct.
6. Prosecution examined total 26 witnesses besides rt proving on record various documents. The appellant was also examined under Section 313 Cr.P.C. and he examined one witness in defence.
7. Learned trial Court after finding sufficient evidence against the appellant convicted and sentenced him, as noticed above.
8. We have heard learned counsel for the parties and have also gone through the record carefully.
9. Admittedly, there was no eye witness to the incident. The prosecution case hinges upon circumstantial evidence. It is settled that in a case of circumstantial evidence, each and every circumstance against the accused is required to be proved beyond reasonable doubts and all ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -5- such circumstances should form complete chain of facts leading to the hypothesis that the offence, if any, has been .
committed by the accused and none else. In Anjan Kumar Sarma v. State of Assam, (2017) 14 SCC 359 Hon'ble Supreme Court has underlined following factors to be taken into account in adjudication of cases of of circumstantial evidence:-
(1) the circumstances from which the conclusion of rt guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be"
established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -6- probability the act must have been done by the accused.
.
10. The prosecution had relied upon a circumstance that the appellant and deceased were not maintaining cordial relations and such could be the motive for crime. It was alleged that the relations between the deceased and of the appellant were strained and the appellant had been harassing her.
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11. In cases of circumstantial evidence, motive gains importance. However, we could not find any convincing evidence in support of the allegations save and except for the bald and vague statements of PW-1 and PW-2.
Additionally, a copy of compromise deed Ext. PW-1/B has also been placed on record, but the same cannot be held sufficient to infer that the crime was committed by the appellant in order to get rid of his wife. Noticeably, Ext.
PW-1/B was executed on 5.12.2013 i.e. more than two years prior to the date of incident. The contents of the document also cannot be taken to be gospel truth and sufficient to infer a motive for commission of such a heinous crime for the reasons that thereafter the appellant ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -7- and his wife had been living together in tenanted premises for long period of time. It is also reflected from the .
evidence on record that the appellant had been shunted out from his parental house by his parents. The appellant had solemnized love marriage with the deceased. No serious complaint against the appellant was reported to of any of the authorities thereafter.
12. There also was no material to suggest that the rt deceased had been residing in the house of her father for last about fifteen days in order to avoid the appellant. PW-
1 and PW-2 had not stated that the appellant after having visited the house of PW-1 at night on 13.4.2015 had any fight or quarrel with the deceased. Rather, it was stated by PW-1 that the deceased along with her son slept with PW-2 and the appellant had slept with PW-1 in another room. It was further stated that in the morning after breakfast, the appellant and PW-1 had left for their respective jobs. In such circumstances, there was no material on record to suggest that the relations between the appellant and deceased were so strained in the immediate past which ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -8- could have either given reason to the deceased to commit suicide or to the appellant to commit murder.
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13. Next, it had been sought to be proved that the appellant was present in the house of Kumar Tamang (PW-
1) at the time of incident. The prosecution as also the learned trial Court has placed strong reliance on the of testimony of PW-3, who allegedly had witnessed the appellant hiding himself and thereafter the body of the rt deceased hanging from the roof in the house of Kumar Tamang (PW-1). However, after going through the statement of PW-3 coupled with other attending circumstances we have found the said evidence wanting in many material aspects of the matter.
14. PW-3 was about sixteen year old at the time of alleged incident. The said witness while deposing before the Court had clearly mentioned that her statement was recorded by the police on the date of occurrence at about 2-3 PM but no such fact has been shown to exist in prosecution case. On the other hand, the deposition of Investigating Officer PW-15 reveals that the statement of PW-3, under Section 161 Cr.P.C, was recorded nine days ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -9- after the incident on 23.4.2015. Thereafter, the statement of said witness Ext. PW-3/A under Section 164 Cr.P.C. was .
recorded before the learned Magistrate on 4.5.2015 after a further gap of ten days.
15. It is highly improbable that after attaining the knowledge about the death of deceased, she would not of have immediately disclosed to the police or at least to the elders in her house about the incident. How and under rt what circumstance PW-3 came to be associated as a witness after about nine days of incident has remained completely unexplained. Further, the statement of PW-3 under Section 164 Cr.P.C. was got recorded after another about ten days and again there is no explanation for such delay. The doubt is also created from the fact that PW-3 had admitted in categoric terms in her cross-examination that she was made to read her statement before being taken to Magistrate.
16. The presence of appellant at the crime scene is also said to have been proved by alleging that appellant was the first person who had informed others regarding the happening of the incident. As per PW-2(mother of ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -10- deceased) the appellant had telephonically informed her about the incident, however, the call detail record has not .
been produced or proved. PW-1 and PW-2 both were interested witnesses as the case was registered at their instance and they definitely were interested in success of the prosecution against the appellant. In such of circumstances corroboration to the version put forth by PW-2 was necessary.
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17. Another fact that creates suspicion regarding the prosecution story is that none else than PW-1 had witnessed any piece of cloth tied around the neck of the deceased. PW-2 has stated that when she arrived at home, the deceased was found in a sitting posture against corner of the room with a piece of cloth "Chunni" tied around her neck and the other end of the same 'Chunni" was found tied with a bamboo beam of the roof after being severed.
She further stated that the piece of cloth tied around the neck of deceased was removed by her. As per prosecution case, the other persons to enter the house after PW-2 were her husband PW-2 and the appellant. As per PW-1, he had not seen the "Chunni" tied around the neck of deceased ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -11- when he had reached home. The investigation has been silent on the aspect as to why PW-1 had removed the .
"Chunni" an important piece of evidence before arrival of police at the crime scene. Thus, there is no convincing material on record to prove that the "Chunni" as alleged by the prosecution was in fact used to strangulate the of deceased.
18. It was alleged against the appellant that he had rt cut the "Chunni" into two pieces with the aid of "Khukhari"
with a purpose to create false evidence. Prosecution had alleged that the appellant at the first instance had strangulated the deceased and thereafter had hanged the body in order to give an appearance of a case of suicide. It being so, it is not understandable as to why would the appellant cut the "Chunni" into two pieces by allowing one to hang from the roof and other to remain tied to the neck of deceased in case his purpose was to make the case appear to be that of suicide.
19. In the absence of examination of knot around the neck of deceased, the investigation officer could not have assumed the background facts. Noticeably, even the ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -12- medical evidence/opinion is not very definitive. PW-9 had conducted the post-mortem and had found a ligature mark .
29 x 3 cm around the neck of deceased. The ligature mark was stated to be complete. He had also found abrasion 3.5 x 2 cm on the left back outer aspect of neck of the deceased. Another injury i.e. abrasion 3 x 5 cm was found of on left outer aspect of the neck of the deceased. Lastly, a contusion 4 x 3 cm was found at left upper face aspect. All rt these injuries according to PW-9 were anti-mortem. As per opinion recorded by PW-9, the deceased had died due to neck compression due to ligature strangulation, which was sufficient to cause death in an ordinary course of nature.
During investigation, the investigating officer had sought further opinion from PW-9 and the opinion rendered by such witness was as under:-
"1. Injury No.1 mentioned in Post mortem report No. 75/2015 was strangulation ligature mark associated with multiple abrasions. This type of injury could be caused by forceful compression of neck by ligature material and mentioned abrasion could be caused by hand nail. A DUPATTA may be used as a ligature material.
2. Mentioned gross infiltration of blood in larynx mucosa in injury No.1 could be caused in strangulation by ligature material.::: Downloaded on - 17/11/2023 20:32:08 :::CIS -13-
3. Mentioned mark of injury at face was contusion (injury No.4) caused by blunt force impact which could be possible in beating with hand and mark of injury (injury .
No.2) at left back- - outer aspect of neck was abrasion, which may be caused by friction impact."
20. PW-9 had nowhere opined that the death was homicide. There was no opinion also that there was no of possibility of suicidal death. It was only while answering the question in cross-examination that PW-9 stated that rt "self stated that there has to be considerable pressure while strangulating which causes the complete ligature mark, which is not there in hanging cases. It is incorrect that this is not the case of strangulation to suicide due to hanging".
21. In addition, certain more facts forming part of the record need to be noticed in order to assess the probability in which the appellant is alleged to have committed the crime. Site map Ext. PW-15/A has been prepared by the Investigating Officer. In his notes appended on the site map, the investigating officer has referred to the room where the body was found hanging and also to another room where the body was found kept at the time of arrival of police. It has also been recorded ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -14- that the body was brought down by the appellant by cutting the "Chunni" with the help of "Khukhari" by .
appellant. The site map was prepared by PW-15 on spot and the date appended below the signatures of the scribe of the document is 14.4.2015 i.e. the date of incident itself.
How the investigating officer had reached at a conclusion of that the appellant had brought down the body by cutting the "Chunni"
rt with "Khukhari" has again remained unexplained.
22. In the same document i.e. Ext. PW-15/A it has been recorded that the height of the roof from floor was 8' 2½" and bed was found in the room with height of 2' 5".
The pieces of "Chunni" hanging from roof were found to be 1' 11" and the distance between roof and body was found to be 5' 9". From the statement of PW-12, it is clear that the two pieces of "Chunni" sent for laboratory examination had been found to be having length of 61 and 62 cm respectively. The entire length of "Chunni" thus was 123 Cms i.e. 4' 2". Accordingly, in order to hang a body with the help of four feet long "Chunni" the person had to tie the knot at one end of "Chunni" with the roof and the other end ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -15- around the neck. In either of the cases, the person had to make the corpse stand and thereafter to tie the knot on the .
other end, which appear to be highly improbable. It is the alleged case of the prosecution that the body was hanged and then brought down on the floor by cutting the "Chunni".
of
23. Another noticeable fact from Ext. PW-15/A is that behind the house of PW-1, there is main road leading rt from village Darati to Gopalpur, which in fact leads to Gopalpur market. Pedestrian/path leads to said road from the house of PW-1. In such circumstances, another doubt is created as to the version of PW-3. The appellant could have easily walked through the pedestrian/path to the main road in order to abscond from the place and there was no need for him to have created suspicion by jumping from verandah into the fields to hide himself as stated by PW-3.
24. Further, the prosecution has placed reliance on a disclosure statement Ext. PW-7/A allegedly made by the appellant and the facts discovered thereafter vide memo Ext. PW-5/A. Such reliance clearly is misplaced as the ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -16- evidence is inadmissible being hit by Section 25 of the Indian Evidence Act. No new fact was discovered on the .
basis of alleged statement of the appellant, who admittedly was in custody at the relevant time.
25. Another glaring omission in the prosecution case is the silence on the presence of the child of deceased at of the time of incident. It is not the case of PW-2 that the child was with her. The child was stated to be about three rt years old and hence at such age, the child could have easily perceived and narrated the facts as had taken place.
Strangely, nothing has been stated about the presence of the child.
26. In light of above discussion, we have no hesitation to hold that the findings arrived at by the learned trial Court for holding the appellant guilty are not sustainable for the simple reason that the prosecution evidence did not satisfy the requirement of discharging the burden which was heavily placed upon the prosecution.
The evidence led by the prosecution suffers from various infirmities and incongruities and thus cannot be held sufficient to have proved the alleged incriminating ::: Downloaded on - 17/11/2023 20:32:08 :::CIS -17- circumstances against the appellant beyond reasonable doubts. The chain of alleged circumstances also was not .
complete to arrive at definitive hypothesis as to the guilt of the appellant.
27. In result, the appeal succeeds. The judgment and sentence recorded by the learned Additional Sessions of Judge (III), Kangra at Dharmshala, District Kangra, H.P. in Sessions Trial No.08-P/VII/2015 are set aside.
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appellant is acquitted of all the charges. He be set free
immediately in case not required in any other case. The release of the appellant shall be subject to his furnishing a bond in the sum of Rs. 50,000/- to the satisfaction of Registrar (Judicial) of this Court under Section 437A of the Cr.P.C. Pending applications, if any, also stand disposed of. Record be sent back forthwith.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
17th November, 2023 Judge
(kck)
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